1 – Analyze the Fact Patterns
In this exercise, you get a small slice of what it is like to be a judge. Analyze three (3) fact patterns to determine if the individual is an employee or an independent contractor. Be sure to analyze all THREE people. Use the answer sheet provided.
Analyze the fact patterns to determine if the individual is an employee or an independent contractor. Be sure to analyze all THREE people. Use the attached answer sheet.
In this assignment, the issue is whether a person should be considered an Employee or an Independent Contractor. The rule includes the seven (7) elements given below used by the courts to make this determination. In your analysis, apply the facts to the rule and explain why you feel the preponderance of the evidence supports your conclusion of Employee or Independent Contractor. Be sure to do a thorough analysis, i.e., FOR EACH PERSON, in your answer apply all 7 elements to each fact pattern. After you apply all 7 elements, come to a conclusion on each individual by weighing the various factors that influenced you in coming to the conclusion that the individual was an Employee or an Independent Contractor.
[Note: Some of the fact patterns are “moot”, that is, you could argue either way. Choose a side and advocate for it!]
FOR EXTRA CREDIT POINTS: Advocate first for one side as explained above. THEN FOR EXTRA CREDIT, advocate for the other side. Simply make the transition by saying, “Arguing in the alternative,” and make the case for the other side; address all seven criteria when arguing in the alternative. DO NOT change the facts. Use the same facts. Simply put more emphasis on some facts than others.
CRITERIA USED BY THE COURTS:
1. How much control does the employer exercise over the details of the work? (Employee if Employer exercises control)
2. Is the worker engaged in an occupation or business distinct from the employer? (if yes, then the person is an Independent Contractor)
3. Is the work usually done under the employers direction or by a specialist without supervision? (If under the employer’s direction, the person is an Employee)
4. Does the employer supply the tools at the place of work? (If yes, the person is an Employee)
5. For how long is the person employed? (If long, the person is an Employee)
6. What is the method of payment by time period or at the completion of the job? (If by the hour, the person is an Employee; it a lump sum is paid at the end (or beginning) of a job, the person is an Independent Contractor
7. What degree of skill is required? (If the degree of skill is great or unique, the person is an Independent Contractor.)
FACT PATTERNS
1. Art shows up at the factory every day at 7 a.m. His factory is part of an automobile manufacturing company. Each day he takes his place on the assembly line. His job on the assembly line is to place the front hood on the car as it moves down the assembly line. The assembly line moves at a steady pace, so he has only 12 minutes to position the hood on the car and bolt it into place using the pneumatic wrench provided as part of the assembly line. He has worked there so long (17 years), that Art requires no supervision. He doesn’t mind the tedious work, though, because he gets paid $35 per hour, and the factory is air conditioned!
2. Pete, the Pied Piper, is an itinerant teacher serving several communities on the Island of Hawaii, including Hilo, Kailua-Kona, Kamuela to provide flute lessons for the children in the community. He wanders all around the Island of Hawaii from to Hilo to Hawi, from Kona to Kau … playing his pipes. As he enters each community, the keiki follow him dancing and singing. The preschools love Mr. Piper, because he shows up whenever he pleases, which the kids find delightful (and the teachers find a welcome relief!). In fact, the townspeople are so happy when he comes, that they toss coins at him as he and the children parade down the street. The children eagerly gather the coins and give them to Mr. Piper in exchange for an opportunity to play his magic flute. An artist of great skill and infinite patience, he works as a private tutor with the children who want to learn how to play his magical flute. By the time the students enter high school, under his instruction, most student find that they can join the high school’s elite fife and drum corps.
3. Michelangelo is a famous artist. Currently he on contract with the Vatican. Under his contract, he is to come every day to paint the ceiling in the Sistine Chapel, which is a multi-year project. Day in and day out, he lies on his back on a plank between two very tall ladders. All day long he paints angels. As Michelangelo paints his 78th angel, he wonders if his work will ever be seen as inspirational or whether it will be viewed as ordinary interior finish work. He is constantly nagged by the cardinals and archbishops, who “supervise” him. He hopes that the most annoying Archbishop never notices how much the devil he painted two weeks ago bears a striking resemblance to the Archbishop. In order to cut costs, the Vatican offered to purchase Michelangelo’s brushes and paints at discount art supply stores. However, Michelangelo insisted that his brushes come from Giovanni and his paints from Francesco, except for his yellows, which must be purchased from Giordano. The Vatican has a history of not paying its workers and artisans and instead participates in the patronage system. Patronage was a significant feature of in the Middle Ages. Patrons, usually wealthy and influential members of the society, financially supported the efforts of academicians and artists, commissioning artwork, and/or supporting writers and artists for years. In this case, the Vatican provided Michelangelo with food and housing (and blessings).
2 – Compare and Contrast
1. Use the attached comparison sheet.
2. Enter your answers into the columns entitle “My Position”.
3.Select one of your colleagues to do a comparison. Enter your colleague’s answer in the columns entitled “Colleague’s Position”.
4. In the fourth and fifth columns, enter your colleague’s responses.
5. Compare and contrast your answer to that of your colleague’s and enter that in the 6th column.
6. Indicate who you think had the better answer and why.
3 – Extra Credit
1. Do some online research and find out what the IRS does to an “employer” if it determines that the persons the employer claimed were “independent contractors” are in fact “employees”? List all the punishments that can apply, both civil and criminal.
2. If you were going to hire “independent contractors”, what provisions would you include in your contract to make it clear that this person is NOT an employee, but in fact is an independent contractor? Use the seven (7) criteria as a guide to those provisions.
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